Motion-Secondary: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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                                FRANK D, POND (Bar No. 126191)
RICHARD S. CHON (Bar No. 197541)

rchon@pondnorth.com ELECTRONICALLY
KELLEY T. MAHONEY (Bar No. 283296)
kmahoney@pondnorth.com F ILE D -
POND NORTH LLP Superior Court of California,
350 South Grand Avenue, Suite 3300 County of San Francisco
Los Angeles, CA 90071 MAY 14 2014
Telephone: (213) 617-6170 Clerk of the Court
Facsimile: (213) 623-3594 BY: ROMY RISK

Deputy Clerk

Attorneys for Defendant
FORELAND PARTS, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and Case No: CGC-13-276217

NANCY KARIDIS-KOEPKE,
DECLARATION OF KELLEY T, MAHONEY IN

Plaintiffs, SUPPORT OF DEFENDANT FORELAND PARTS,
INC.’S MOTION FOR SUMMARY JUDGMENT
vs. OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION OF ISSUES
FORD MOTOR COMPANY; e/ al.
Judge: Hon. Teri L. Jackson
Defendants. Department: 503

Date: June 11, 2014
_Time: 9:30 a.m.

Case Filed: | December 3, 0213
Trial Date: June 16, 2014

I, KELLEY T. MAHONEY, declare:

1. lam an attomcy at law duly licensed to practice before all of the courts of the State of
California. I am an associate with the law firm of POND NORTH LLP, attorneys of record for
Defendant Foreland Parts, Inc. (“Foreland” or “Defendant) in the above-entitled action. I have
personal knowledge of the facts stated herein, or have gained such knowledge from my review of the
records and documents maintained in our file in the regular course of business. If called as a witness
in this matter, I could and would testify competently to the matters set forth herein.

2. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ First Amended
Complaint, filed on May 1, 2014.

1

DECLARATION OF KELLEY T. MAHONEY IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MSJ
OR, IN THE ALTERNATIVE, MSA

4561-0071:4838-9886-1850.v13. Attached

hereto as Exhibit B is a true and correct copy of Foreland’s Special

Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014.

4. Attached

hereto as Exhibit C is a true and correct copy of Plaintiff Harold Koepke’s

Responses to Foreland Parts, Inc.’s Special Interrogatories, Set One, served April 11, 2014, verified

April 16, 2014.
5. Attached

hereto as Exhibit D is a true and correct copy of Foreland’s Special

Interrogatories to Plaintiff Nancy Karidis-Koepke, Set One, served March 20, 2014.

6. Attached
Koepke’s Responses to
2014, verified April 15,
7. Attached

2014.

8. Attached

Responses to Foreland P:

Plaintiff Harold Koepke,

9. Attached

Deposition Transcript of Plaintiff Haro!

10. Attached

1h. Attached
12.

Attached

13. Attached

14, Attached

Deposition Transcript of

Deposition Transcript of Plaintiff Haro

Deposition Transcript of Plaintiff Haro

hereto as Exhibit E is a true and correct copy of Plaintiff Nancy Karidis-

Foreland Parts, Inc.’s Special Interrogatories, Set One, served April 11,

2014,

hereto as Exhibit F is a true and correct copy of Foreland’s Request for

Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20,

ereto as Exhibit G is a true and correct copy of Plaintiff Harold Koepke’s
arts, Inc.’s Request for Production of Documents and Tangible Items to
Set One, served April 11, 2014, verified April 16, 2014.

hereto as Exhibit H is a true and correct copy of relevant pages from the
id Koepke, Volume 5, dated January 29, 2014.

hereto as Exhibit I is a true and correct copy of relevant pages from the

d Koepke, Volume 6, dated January 30, 2014.

ereto as Exhibit J is a true and correct copy of relevant pages from the

d Koepke, Volume 7, dated January 31, 2014.

ereto as Exhibit K is a true and correct copy of relevant pages from the

Deposition Transcript of James Nash, Volume 1, dated February 13, 2014.

ereto as Exhibit L is a true and correct copy of relevant pages from the

Deposition Transcript of James Nash, Volume 2, dated March 10, 2014.

hereto as Exhibit M is a truc and correct copy of relevant pages from the

Lawrence Krasnow, Volume 2, dated February 25, 2014.
2

DECLARATION OF KELLEY T. MAHONEY IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MSJ

4561-007 1:4838-9886-1850.v1

OR, IN THE ALTERNATIVE, MSA15. Attached hereto as Exhibit N is a true and correct copy of relevant pages from the
Deposition Transcript of Craig Clifton, Volume 1, dated March 5, 2014.

16. Attached hereto as Exhibit O is a true and correct copy of the Declaration of Byron
Frantz. in support of Defendant Genuine Parts Company’s Motion for Summary Judgment or, in the
Alternative, Summary Adjudication of Issues.

17. Attached hereto as Exhibit P is a true and correct copy of the Declaration of Gaylord
Spencer in support of Defendant National Automotive Parts Association’s Motion for Summary
Judgment or, in the Alternative, Summary Adjudication of Issues.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.

Executed on this 14th day of May, 2014, at San Francisco, California.

KELLEY T. ONEY

3

DECLARATION OF KELLEY T. MAHONEY IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MST
OR, IN THE ALTERNATIVE, MSA
4561-0071 :4838-9886-1850.¥1 .EXHIBIT AKazan, MCCLAIN,
SATTERLEY &
GREENWOOD

PROFESSIONAL LAW

‘ConpoRATION

JACK LONDON Maer

‘SS HARRISON STREET,

(519) 302-1000
Fax (510) 835-4013

CBOSCHN301738.1

Oo NN

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Joseph D. Saitterley, Esq. (C.S.B. #286890)
jsatterley@kazanlaw.com

Carole M. Bosch, Esq. (C.S.B..#239790)
cbosch@kazanlaw.com

KAZAN, McCLAIN, SATTERLEY & GREENWOOD
A Professional Law Corporation

Jack London Market

55 Harrison Street, Suite 400

Oakland, California 94607

Telephone: (510) 302-1000

Attomeys for Plaintiffs :
SUPERIOR COURT OF CALIFORNIA.

COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY KARIDIS- No. CGC13276217
KOEPKE,
FIRST AMENDED COMPLAINT
Plaintiffs, FOR PERSONAL INJURIES;
NEGLIGENCE; BREACH OF
vs. WARRANTIES; STRICT
LIABILITY; FRAUD;
FORD MOTOR COMPANY; A.B.C. MOBILE CONSPIRACY; PREMISES
SYSTEMS, individually and as successor in interest, {| LIABILITY; NEGLIGENT
parent, alter ego, and equitable trustee of UNDERTAKING; AND LOSS OF

ASSOCIATED BRAKE COMPANY and WESTERN | CONSORTIUM
STATES BRAKE MANUFACTURING;
AMERICAN HONDA MOTOR CO. INC.; BELL Code of Civil Procedure §36(d)
INDUSTRIES INC., individually and as successor in
interest, parent, alter ego, and equitable trustee of
ROX AUTOMOTIVE; BELNORTEL
CORPORATION, d.b.a. A.B.C. MOBILE BRAKE
OF SAN FRANCISCO; BORGWARNER MORSE
TEC INC., individually and as successor in interest,
parent, alter ego and equitable trustee of
BORG-WARNER CORPORATION;
BURLINGAME AUTO SUPPLY; CONTINENTAL,
AUTOMOTIVE SYSTEMS, INC., individually and

as successor in interest, parent, alter ego and equitable
trustee of CONTINENTAL TEVES, INC.; COOPER
INDUSTRIES, LLC, individually and as successor in
interest, alter ego and equitable trustee of PNEUMO
ABEX, LLC and ABEX CORPORATION; DON L.
MORRIS, INC.; FMC CORPORATION-JOHN
BEAN AUTOMOTIVE EQUIPMENT SERVICE
DIVISION; FMC TECHNOLOGIES, INC.,

individually and as successor in interest, parent, alter
ego, and equitable trustee of JOHN BEAN
AUTOMOTIVE EQUIPMENT SERVICE DIVISION
of FMC CORPORATION; FOLSOM AUTO
SUPPLY; GENUINE PARTS COMPANY; H.M.
ROYAL, INC.; HONEYWELL INTERNATIONAL.

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, McCain,
SATTERLEY &
GREENWOOD

APROPESSIONAL LAW

Conoaanen
dkox LORDON MARKET

65 Harrison STREET,

‘Sune 400
OAKLAND, CA 94607
{810} 302-1000
Fax (679) 835-4913

CBOSCHI301738.1

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INC., fka ALLIED SIGNAL, INC., as Successor-In-
Interest to the BENDIX CORPORATION;
KELSEY-HAYES COMPANY; LEAR SIEGLER
DIVERSIFIED HOLDINGS CORP. individually and
as successor in interest, parent, alter ego and equitable
trustee of ROYAL INDUSTRIES, INC.; LES VOGEL
CHEVROLET COMPANY; MORTON
INTERNATIONAL, LLC, formerly known as
MORTON INTERNATIONAL, INC., individually
and as successor in interest, parent, alter ego and
equitable trustee of FHIOKOL CORPORATION;
NATIONAL AUTOMOTIVE PARTS
ASSOCIATION; PARKER HANNIFIN
CORPORATION, individually and as successor in
interest, parent, alter ego and equitable trustee of EIS
BRAKE PARTS AND INDUSTRIAL &
AUTOMOTIVE ASSOCIATES, INC., d.b.a. CALI-
BLOCK; PNEUMO ABEX LLC, individually and as
successor in interest, parent, alter ego and equitable
trustee of ABEX CORPORATION; ROX
AUTOMOTIVE; SHELL OIL COMPANY;
SPECIALTY FOREIGN AUTO PARTS, INC.
individually and as successor in interest, parent, alter
ego and equitable trustee of SPECIALITY FOREIGN
AUTO PARTS; THE BUDD COMPANY; THE
HERTZ CORPORATION; VOLKSWAGEN GROUP
OF AMERICA, INC.; TOYOTA MOTOR SALES,
US.A,, INC; W. BERRY HURLEY
CORPORATION, d.b.a. FEDERAL AUTO PARTS;
METROPOLITAN LIFE INSURANCE COMPANY;
FIRST DOE through FOUR HUNDREDTH DOE,
inclusive,

Defendants.

Plaintiff HAROLD KOEPKE alleges:
FIRST CAUSE OF ACTION
Negligence
[Against All Products Defendants]
1.

Plaintiff Harold Koepke brings this action on bis own behalf. The masculine form as used
in this complaint, if applicable as shown by the context hereof, applies to a female person or a
corporation.

i
“

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES24

Kazan, MCCLAIN, 25

SaTTERLEY &
GREENWOOD
APROFESSIONAL Lave
‘CoRPonaTON
eK Laxcos Marker

55 HaRrasoN STREET,

‘Sums 409
OnKiAND, GA 94607
(610) 302-1000
Fax (510) 835-4973

‘CBOSCHN301736.1

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I.

Plaintiff does not know the true names and capacities, whether corporate, associate or
individual of defendants sued herein as FIRST DOE through TWO HUNDRED TENTH DOE,
inclusive, and each of them, and for that reason prays leave to insert the true names and capacities
of said defendants when the same are ascertained. Plaintiff is informed and believes and therefore
alleges that each of the defendants designated herein as a DOE is negligently, intentionally and/or
strictly liable or responsible in some manner for the events and happenings herein referred to, and
proximately caused injury and damages to plaintiff thereby as herein alleged.

TH.

At all times herein mentioned, each of the defendants was the agent and employee of cach
of the remaining defendants, and was at all times acting within the purpose and scope of said
agency and employment, and cach defendant has ratified and approved the acts of the remaining
defendants.

Iv.

Defendants FORD MOTOR COMPANY; A.B.C. MOBILE SYSTEMS, individually and
as successor in interest, parent, alter ego, and equitable trustee of ASSOCIATED BRAKE
COMPANY and WESTERN STATES BRAKE MANUFACTURING; AMERICAN HONDA
MOTOR CO. INC.; BELL INDUSTRIES INC., individually and as successor in interest, parent,
alter ego, and equitable trustee of ROX AUTOMOTIVE; BELNORTEL CORPORATION, d.b.a.
A.B.C. MOBILE BRAKE OF SAN FRANCISCO; BORGWARNER MORSE TEC INC.,
individually and as successor in interest, parent, alter ego and equitable trustee of
BORG-WARNER CORPORATION; BURLINGAME AUTO SUPPLY; CONTINENTAL
AUTOMOTIVE SYSTEMS, INC., individually and as successor in interest, parent, alter ego and
equitable trustee of CONTINENTAL TEVES, INC.; COOPER INDUSTRIES, LLC, individually
and as successor in interest, alter ego and equitable trustee of PNEUMO ABEX, LLC arid ABEX
CORPORATION; DON L. MORRIS, INC.; FMC CORPORATION--JOHN BEAN
AUTOMOTIVE EQUIPMENT SERVICE DIVISION; FMC TECHNOLOGIES, INC.,

individually and as successor in interest, parent, alter ego, and equitable trustee of JOHN BEAN

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKAZAN, MCCLAIN,
SATTERLEY &
GREENWGCO 26

A PROFESSIONAL LAM

Cononarion
ek Loxton Men
65 Haanison Strcet, 27
‘Sure 400

Onkuano, CA 94607
(810) 302-1000

Fax(st0)835.4913 28

(CBOSCHN301738.4

AUTOMOTIVE EQUIPMENT SERVICE DIVISION of FAC CORPORATION; FOLSOM
AUTO SUPPLY; GENUINE PARTS COMPANY; H.M. ROYAL, INC.; HONEYWELL
INTERNATIONAL, INC., fka ALLIED SIGNAL, INC., as Successor-In-Interest to the BENDIX
CORPORATION; KELSEY-HAYES COMPANY; LEAR SIEGLER DIVERSIFIED HOLDINGS
CORP., individually and as successor in interest, parent, alter ego and equitable trustee of ROYAL
INDUSTRIES, INC.; LES VOGEL CHEVROLET COMPANY; MORTON INTERNATIONAL,
LLC, formerly known as MORTON INTERNATIONAL, INC., individually and as successor in
interest, parent, alter ego and equitable trustee of THIOKOL CORPORATION; NATIONAL
AUTOMOTIVE PARTS ASSOCIATION; PARKER HANNIFIN CORPORATION, individually
and as successor in interest, parent, alter ego and equitable trustee of EIS BRAKE PARTS AND
INDUSTRIAL & AUTOMOTIVE ASSOCIATES, INC,, d.b.a. CALI-BLOCK; PNEUMO ABEX
LLC, individually and as successor in interest, parent, alter ego and equitable trustee of ABEX
CORPORATION; ROX AUTOMOTIVE; SHELL OIL COMPANY; SPECIALTY FOREIGN
AUTO PARTS, INC. individually and as successor in interest, parent, alter ego and equitable
trustee of SPECIALITY FOREIGN AUTO PARTS; THE BUDD COMPANY; THE HERTZ
CORPORATION; VOLKSWAGEN GROUP OF AMERICA, INC.; TOYOTA MOTOR SALES,
U.S.A., INC.; W. BERRY HURLEY CORPORATION, d.b.a. FEDERAL AUTO PARTS;
METROPOLITAN LIFE INSURANCE COMPANY; FIRST DOE through FIFTIETH DOE,
inclusive, were at all times herein and still are corporations authorized to and doing business in the
State of California.

Vv.

Defendants’ products at issue in this complaint consist of asbestos arid asbestos-containing
products, or products as to which defendants knew or should have known that reasonably
foreseeable uses of the products would expose persons such as plaintiff who worked with or
around the products to friable asbestos. These products were defective in their design,
manufacture, labeling, marketing and/or warning and are referred to throughout this complaint as
“asbestos” or “asbestos-containing products.”
uw

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKAZAN, MCCLAIN,
SATTERLEY &
GREENWOOD

APROFESSIONAL LAW

Corporation

KEK LONDON MAXEY

SBHARRISON STREET,
Suite 406

Onxiano, CA 84607
(510) 302-1000

Fax (510) 835-4513

(CROSCHY1301738.1

a nw ®

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VI.

At all times herein mentioned defendants, and each of them, were engaged in the business
of mining, manufacturing, assembling, supplying, packaging, installing and labeling asbestos, and
products produced therefrom, for sale to and use by the members of the general public as well as to
other parties for use of the said products to manufacture and supply products therefrom.

Vi.

At all times herein mentioned, defendants FIFTY-FIRST DOE through TWO HUNDRED
TENTH DOE were Officers and Directors of named defendants herein as FIRST DOE through
FIFTIETH DOE.

VIEL

The defendants, and each of them, acting through their agents, servants and/or employees,
cause and have caused in the past, certain asbestos-containing products and asbestos-related
materials, to be placed in the stream of commerce with the result that said products and materials
came into contact and/or use by plaintiff and his co-workers which caused exposure to plaintiff.

IX.

Plaintiff Harold Koepke was a worker who, from approximately 1971 until 2002 worked
with and was exposed to asbestos, asbestos products and asbestos-related building materials
mined, manufactured, processed, imported, designed, specified, converted, compounded, sold
and/or installed by the defendants, and each of them. During the course of his career, plaintiff was
exposed to asbestos and asbestos-containing materials at the following employments and sites:

(1) From approximately 1971 through 1980, while working at Shell Service Station in

San Francisco, California;

(2) From approximately 1980 through 2002, while working at Harold’s Automotive in
San Mateo, California;
Plaintiff was also exposed to asbestos and asbestos-containing products through repair,
maintenance and servicing.of motor vehicles.
i
ul

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKAZAN, MCCLAIN,
SATTERLEY &
GREENWOOD

[APROFESSIONAL LAW

Conporanion

SACKLONDON MART

BB HARRISON STREET,

Sure 400
Onkuano, CA 94607
4540) 302-1000
Fax (510) 835-4913,

(CBOSCH/1304738.1

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X.

During the course and scope of his attendance and work, plaintiff was exposed to asbestos
products and asbestos-related materials of defendants, which exposure directly and proximately
caused him to develop an illness known and designated as mesothelioma.

XI.

The illness and disability of plaintiff is the direct and proximate result of the negligence of
the defendants, and each of them, in that they produced, sold and otherwise put into the stream of
commerce, the foregoing materials which the said defendants, and each of them, knew, or in the
exercise of ordinary care should have known, were deleterious, poisonous and highly harmful to
plaintiff's body, tungs, respiratory system, skin and health.

Xi.

Plaintiff, exercising reasonable diligence, discovered the aforealleged conduct, misconduct
and culpability of defendants, and cach of them, on or about or after August 10, 2013, when
informed of his diagnosis by a physician. Plaintiff could not have discovered such condition
sooner because such condition was brought about without noticeable trauma until it had advanced
to such a point that diagnosis could be made. Such a diagnosis required the services of an expert,
and since plaintiff did not possess such expertise, he could not know, in the exercise of reasonable
care, of the cause of his injury until such time as he was diagnosed and advised. Plaintiff could not
know, until such advice, of the culpability of the defendants, and each of them.

XII.

As a direct and proximate result of the conduct of the defendants, and each of them,
plaintiff experienced and continues to experience prolonged pain and suffering, the necessity for
medical treatment, injuries including, but not limited to, mesothelioma, severe shock to his
nervous system, and other injuries, the exact extent of which are unknown to plaintiff.

XIV.

By reason of the aforesaid allegations, it has been necessary for plaintiff to engage the

services of physicians, surgeons, and hospitals; plaintiff does not know the reasonable value of

It

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLAIN,
SATTERLEY &
GREENWOOD

APROMSSIONAL LAW

Conorarion

JACK LOROON MARKET

SS HARRISON STREET,

Sure 400
Onneano, CA 94607
(510) 302-1000
FAX (510) 835-4013

CROSCH1301738.1

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said services which were and are still reasonably required and requests leave to amend this
complaint to insert said sum when it is ascertained.
XV.

By reason of the aforesaid allegations, plaintiff has been unable to follow his normal
gainful occupation for certain periods after the date of said events, and plaintiff has been disabled
for an indefinite time; plaintiff does not now know the value of the employment which has been
lost to him, and requests leave to amend this complaint to insert the reasonable value thereof when
such is ascertained.

XVI.

By reason of the aforesaid negligence of defendants, and each of them, plaintiff has been
damaged to his health, strength, and activity in an amount in excess of $50,000.00 in addition to
special damages herein alleged.

XVII.

The foregoing acts of the defendants, and each of them, were done wantonly, willfully,
oppressively and in conscious disregard of the safety of plaintiff herein, in that the defendants, and
each of them, prior to and at the time of the sale of the aforementioned products to plaintiff's
employers or to those entities that installed and/or handled the asbestos products to which plaintiff
was exposed, knew that the foregoing materials released invisible, undetectable respirable asbestos
fibers when installed or handled and that said fibers were extremely dangerous when inhaled. The
defendants, and each of them, either did not warn or insufficiently warned regarding the dangerous
nature of said materials, nor placed a sufficient warning on the said material or package thereof
regarding said dangerous nature, nor took any action to protect those persons who foreseeably
would be exposed to said asbestos products, despite knowing that persons who had no knowledge
of the dangerous and hazardous nature thereof, such as plaintiff, would be exposed to and inhale
asbestos fibers, and plaintiff is entitled to punitive damages hereunder.

WHEREFORE, plaintiff prays judgment as is hereinafter set forth.

“

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLam,
SATTERLEY &
GREENWOOD

[APROFESSIONA. LAY

Coronation
Aho LOR DON MARKET
SS HARRISON STREET,
‘Sure 400

Oaniaria, CA: 94607
4510) 302-1000

Fax (610) 835-4913

‘CBOSCHN301738.4

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SECOND CAUSE OF ACTION
Breach of Implied Warranty
[Against All Products Defendants}

AS AND FOR A SECOND CAUSE OF ACTION, plaintiff complains of defendants, and
each of them, and alleges:

I.

Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.

IL.

The defendants sold and/or supplied asbestos and asbestos-related materials to plaintiff or
plaintiff's employers, and each defendant impliedly warranted that the said materials were of good
and merchantable quality and fit for their intended use.

TH.

The implied warranty made by the defendants, and each of them, that the asbestos and
asbestos-related materials were of good and merchantable quality for the particular intended use
was breached in that certain harmful, poisonous and deleterious matter and particles were given off
into the atmosphere wherein plaintiff and others in his position carried out their duties as workers
working with such materials and other related materials.

Tv.

As a direct and proximate result of the breach of implied warranty of good and
merchantable quality and fitness for the particular intended use, plaintiff developed an illness, to
wit: mesothelioma, which caused great disability, as previously set forth.

Vv.

By reason of the aforesaid, plaintiff has been damaged to his health, strength, and activity
in an amount in excess of $50,000.00 in addition to special damages herein alleged.

WHEREFORE, plaintiff prays judgment as is hereinafter set forth.
uf

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLAIN,
‘SATTERLEY &
GreENwooo

APROFESSIONAL LAW

Con#oRATion
ac: Longer Maier

85 Harrison SrRECT,

‘Sure 400
‘OaKiAno, CA 94607
(E10) 302-1000
Fax (510) 835-4913

CBOSCHN301796.1

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THIRD CAUSE OF ACTION
Strict Product Liability
Manufacturing Defect/Design Defect/Failure to Warn
[Against All Products Defendants]

AS AND FOR A THIRD CAUSE OF ACTION, plaintiff complains of defendants, and

each of them, and alleges: ,
L

Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.

IL.

At all times herein mentioned, plaintiff's employers or those entities that installed and/or
handled the products to which plaintiff was exposed purchased from defendants, and each of them,
asbestos and asbestos products hereinafter referred to as products that were defective in design,
manufacturing, labeling, marketing and/or warning.

IH.

Defendants, and each of them, knew that the aforementioned products would be used
without inspection for design, manufacturing, labeling, marketing and/or warning defects by the
user thereof.

Iv.

At all times mentioned herein, plaintiff reasonably was unaware of the dangerous nature of
the aforementioned products.

v.

At all times mentioned herein, defendants, and each of them, were aware of the dangerous
and defective nature of the design, manufacturing, labeling and/or marketing of the
aforementioned products, when said products were used in the manner for which they were
intended, and were aware that persons who foreseeably would be exposed to the asbestos
containing products were not aware of the dangerous and defective nature of the design,
qanufacture, labeling and/or marketing of the products, yet defendants took no action to warn or

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLAIN,
SATTERLEY &
GREENWOOD

[APROFESSIONAL LAW

CORPORATION
ACK LONDON MARKET
85 Hansison Street,
‘Sue 400

OnKuwno, CA 94607
(610) 302-1900

Fax (510) 635-4813,

CBOSCHN301738.4

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otherwise protect those who foresceably would be exposed to said defective and improperly
labeled products.
Vi.

Defendants manufactured, distributed, and sold asbestos-containing products. The
asbestos-containing products contained a manufacturing defect when they left defendants’
possession, and plaintiff used those asbestos-containing products in a way that was reasonably
foreseeable to defendants.

vil.

The aforementioned products were defective in design because they did not perform as
safely as an ordinary consumer would have expected them to perform. At the time plaintiff used
the asbestos-containing products, they were substantially the same as when they left defendants’
possession; any change made to the asbestos-containing products after they left defendants’
possession was reasonably foreseeable to defendants; the asbestos-containing products did not
perform as safely as an ordinary consumer would have expected at the time of use; and plaintiff
used the products in the way that was reasonably foreseeable to defendants.

vor.

The aforementioned products lacked sufficient instructions and warnings of potential
dangers. Defendants manufactured, distributed, and sold asbestos-containing products; those
asbestos-containing products had potential dangers that were known or knowable by the use of
scientific knowledge available at the time of the manufacture, distribution, and sale of the
products; the potential hazards presented a substantial danger to plaintiff; ordinary consumers
would not have recognized the potential dangers; defendants failed to adequately warn or instruct
of the potential dangers; and these asbestos-containing products were used in a way that was
reasonably foreseeable to defendants.

Ix.

The aforementioned products were used by plaintiff in the manner for which they were
intended, or plaintiff foreseeably was exposed to said products when they were used in the manner
for which they were intended.

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES 101 x.

2 As a direct and proximate result of the foregoing conduct, plaintiff developed an illness, to

3 | wit: mesothelioma, which caused great disability, as previously set forth.

4 Xi.

5 As a proximate result of the defective design, manufacturing, labeling, marketing and/or

6 |' warning of these aforementioned materials and products, plaintiff was generally damaged as is

7 |) more fully set forth herein and in addition has sustained special damages hereinabove alleged.

8 : XIL

9 The foregoing acts of the defendants, and each of them, were done wantonly, willfully,
10 loppressively and in conscious disregard of the safety of plaintiff herein, in that the defendants, and
11 |} each of them, prior to and at the time of the sale of the aforementioned products to plaintiff's
12 || employers or to those entities that installed and/or handled the asbestos products to which plaintiff
13 || was exposed, knew that the foregoing products and materials released invisible, undetectable
14 |irespirable asbestos fibers when installed or handled and that said fibers were extremely dangerous
15 |twhen inhaled. The defendants, and each of them, either did not warn or insufficiently warned
16 regarding the dangerous nature of said materials, nor placed a sufficient warning on the said
17 || material or package thereof regarding said dangerous nature, nor took any action to protect those
18 |] persons who foreseeably would be exposed to said asbestos products, despite knowing that persons
19 } who had no knowledge of the dangerous and hazardous nature thereof, such as plaintiff, would be

20 |fexposed to and inhale asbestos fibers, and plaintiff is entitled to punitive damages hereunder.

21 WHEREFORE, plaintiff prays judgment as is hereinafter set forth.
22 FOURTH CAUSE OF ACTION
23 Fraud/Failure to Warn
[Against All Products Defendants]
24
Kazan, Moca, AS AND FOR A FOURTH CAUSE OF ACTION, plaintiff complains of defendants, and
SATTERLEY & |

Saewwooo | 26 |leach of them, and alleges:

nex LoNoON Mrecer

85HarAton Street, 27 Hf //
Sure 400

‘Oaxuand, CA 24607

(810) 302-1000
saccoroyeaseats 28 |f//

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES
CBOSCH/301726.1 11KAZAN, MCCLAIN,
‘SATTERLEY &
GREENWOOD

PROFESSIONAL LAW

CoaPonaToN

Nex LONDON MARKET

SSHAGRIEON STREET,

sume 400
‘OnLAND, CA 94607
(810)302-1000
Fax (510) 835-4918

CBOSCHIN301 758.4

DA HW BS

26
27
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L

Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.

I.

At all times pertinent hereto, the defendants, and each of them, owed plaintiff a duty, as
provided for in Sections 1708 and 1710 of the Civil Code of the State of California, to abstain
from injuring the person, property or rights of the plaintiff. In violation of that duty, the
defendants, and each of them, did do the acts and omissions, when a duty to act was imposed, as
set forth herein, thereby proximately causing injury to the plaintiff as is more fully set forth herein.
Such acts and omissions consisted of acts falling within Section 1710, and more specifically were
suggestions of fact which were not true and which the defendants did not believe to be true,
assertions of fact of that which was not true, which the defendants had no reasonable ground for
believing it to be true, and the suppression of facts when a duty existed to disclose it, all as are
more fully set forth herein, and the violation of which as to any one such item gave rise to a cause
of action for violation of the rights of the plaintiff as provided for in the aforementioned code
sections.

Ul.

Since 1924, the defendants, and each of them, have known and have been possessed of the
true facts consisting of medical and scientific data and other knowledge which clearly indicated
that the materials and products referred to herein were and are hazardous to the health and safety
of the plaintiff, and others in plaintiff's position working in close proximity with such materials
and have known of the dangerous propensities of other of the aforementioned materials and
products prior to that time and with intent to deceive plaintiff, and others in his position and with
intent that he and such others should be and remain ignorant of such facts and with intent to induce
plaintiff and such others to alter their positions to their injury and/or risk and in order to gain
advantages did do the following acts:
uf

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLAMN,
‘SATTERLEY &
(GREENWOOD

PROFESSIONAL LAW

CORPORATION
lick LONDON MAKE

55 Hartason SiReeT,

Sure 400
OAKLAND, CA 94607
{510}302-1000
Fax (510) 835-4912

‘CBOSCHA301738.1

25

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27

28 WH

Defendants, and each of them, did not label any of the aforementioned asbestos-
containing materials and products as to the hazards of such materials and products
to the health and safety of plaintiff and others in his position working in close
proximity with such materials until 1964, when certain of such materials were
labeled by some, but not all, of the defendants herein, when the knowledge of such
hazards was existing and known to defendants, and each of them, since 1924. By
not labeling such materials as to their said hazards defendants, and each of them,
caused to be suggested as a fact to plaintiff and plaintiff's employers that it was safe
for plaintiff to work in close proximity to such materials when in fact it was not
true and defendants did not believe it to be true;

Defendants, and each of them, suppressed information relating to the danger of use
of the aforementioned materials by requesting the suppression of information to
plaintiff and the general public concerning the dangerous nature of the
aforementioned materials to workers by not allowing such information to be
disseminated in a manner which would give general notice to the public and
knowledge of the hazardous nature thereof when defendants were bound to disclose
such information;

Defendants, and each of them, sold the aforementioned products and materials to
plaintiffs employers and others without advising such employers and others of the
dangers of use of such materials to persons working in close proximity thereto,
when defendants knew of such dangers, as set forth herein, and, as set forth above,
had a duty to disclose such dangers. Thereby, defendants caused to be positively
asserted to plaintiff's employers of that which was not true and which defendants
had no reasonable ground for believing it to be true, in a manner not warranted by
the information possessed by said defendants, and each of them, of that which was
and is not true, to wit, that it was safe for plaintiff to work in close proximity to

such materials;

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES BKazan, MCCLAN,
SATTERLEY &
GREENWOOD

APROFESSIONA. LAW

eck Lonocn MARMET

85 Hanrason SiREET,

Fax (570) 835-4913,

CBOSCHNI1738.1

24
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Defendants, and each of them, suppressed from everyone, including plaintiff and
plaintiff's employers, and continue to suppress, medical and scientific data and
knowledge of the accurate results of studies including, but not limited to,
suppressing information contained in the unpublished Lanza report by participating
in the influencing of A.J. Lanza to change his report, which altered version was
published in Public Health Reports, Volume 50 at page 1 in 1935, when they were
bound to disclose it unaltered, and by causing Asbestos Magazine, a widely
disseminated trade journal, to omit any mention of the dangers of inhaling asbestos
dust, thereby lessening the probability of notice of danger to those exposed to
asbestos, and thereby caused plaintiff to be and remain ignorant thereof;
Defendants, and each of them, belonged to, participated in, and financially
supported the Asbestos Textile Institute and other industry organizations which
actively promoted the suppression of information of danger to users of the
aforementioned products and materials for and on behalf of defendants, and each of
them, thereby misleading plaintiff and plaintiff's employers to their prejudice
through the suggestions and deceptions set forth above in this cause of action. The
Dust Control Committee, which changed its name to the Air Hygiene Committee,
of the Asbestos Textile Institute was specifically enjoined to study the subject of
dust control; discussions in such committee were held many times of (i) the dangers
inberent in asbestos and the dangers which arise from the lack of control of dust
and (ii) the suppression of such information from 1946 to a date unknown to
plaintiff at this time,

Commencing in 1930 with the study of mine and mill workers at the Thetford
asbestos mines in Quebec, Canada, and the study of workers at Raybestos-
Manhattan plants in Manheim and Charleston, South Carolina, defendants knew
and possessed medical and scientific information of the connection between
inhalation of asbestos fibers and asbestosis, which information was disseminated
through the Asbestos Textile Institute and other industry organizations to all other

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES 14Kazan, MCCLAIN,
SATTERLEY &
GreeNwoop

APROFESSIONAL LAW

Conroranion
kok LONDON MAMET

85 Harrison Sincet,

‘Sure 400
OAKLAND, CA 24507
(610) 302-1000
Fax (510) 835-4843

CBOSCH 3017381

26
27
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defendants, and each of them, herein. Between 1942 and 1950 the defendants, and
each of them, knew and possessed medical and scientific information of the
connection between inhalation of asbestos fibers and cancer, which information
was disseminated through the Asbestos Textile Institute and other industry
organizations to all other defendants herein. Thereby, defendants suggested as a
fact that which is not true and disseminated other facts likely to mislead plaintiff
and plaintiff's employers and which did mislead them for want of communication of
true facts which consisted of the aforedescribed medical and scientific data and
other knowledge by not giving plaintiff or plaintiff's employers the true facts
concerning such knowledge of danger, when defendants were bound to disclose it;
Failed to warn plaintiff and plaintiff's employers of the nature of the said materials,
to wit: dangerous when breathed, causing pathological effects without noticeable
trauma, when possessed with knowledge that such material was dangerous and a
threat to the health of persons coming into contact therewith and under a duty to
disclose it;

Failed to provide plaintiff with information concerning adequate protective masks
and devices for use with and application and installation of the products of the
defendants, and each of them, when they knew that such protective measures were
necessary, when they were under a duty to disclose such information, and if not
advised as to use would result in injury to the plaintiff and others applying and
installing such materials;

Concealed from plaintiff the true nature of the industrial exposure of plaintiff, the
fact that they and each of them, knew that plaintiff and anyone similarly situated,
upon inhalation of asbestos would, in time develop irreversible conditions of either
pueumoconiosis, asbestosis or cancer, or all, and such person. would immediately be
in not good health, the fact that he had in fact been exposed to harmful materials
and the fact that the materials to which he was exposed would cause pathological
effects without noticeable trauma, when under a duty to and bound to disclose it;

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES.Kazan, MCCLAIN,
‘SATTERLEY &
GREENWOOD

A PROFESSIONAL LAW

CORPORATION

Lonncss
96 HARRISON STREET,

‘Suite 400
Onnuano. CA 94607
4610) 302-1000
Fax (510) 835-4913

CBOSCH301736.4

a ow

23
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Failed to provide information to thé public at large and buyers, users and physicians
employed by plaintiff and plaintiff's employers for the purpose of conducting
physical examinations of plaintiff and others working in contact with asbestos as to
the true nature of the hazards of asbestos, in order for such physicians to diagnose,
and treat workers coming into contact with asbestos, in that the materials to which
plaintiff had been exposed would cause pathological effects without noticeable
trauma, when under a duty to supply such information and such failure is likely to
mislead for want of communication of such facts; and

Defendants, and each of them, affirmatively misrepresented that asbestos
containing products were safe to use and handle, when they knew such statements
were false when made, or made said false statements recklessly and without regard
for whether the statements were true.

Iv.

Each of the foregoing acts, suggestions, assertions and forbearances to act when a duty
existed to act, the said defendants, and each of them, having such knowledge, knowing plaintiff
did not have such knowledge and would breathe such material innocently, was done falsely and
fraudulently and with full intent to induce plaintiff to work in a dangerous environment and to
cause plaintiff to remain unaware of the true facts, all in violation of Section 1710 of the Civil

Code of the State of California.

v.

Plaintiff relied upon the said acts, suggestions, assertions and forbearances; had plaintiff

known the true facts, plaintiff would not have continued to work in the said environment.

VI.

By reason of the aforesaid premises, plaintiff has been damaged in his health, strength and

activity in addition to special damages hereinabove alleged.

VU.

Each of the said acts and forbearances to act were caused by false, fraudulent and malicious

motives of the defendants, and each of them, and plaintiff is entitled to exemplary and punitive

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES 16KAZAN, MCCLAIN,
‘SATTERLEY &
GREENWOOD

APROFESSICHAL Law

CORPORATION

JnGK LONDON Marke

1
85 Haarison Stacer,

Suire 406
OaKvann, CA 94607
(539) 02-1000
Fax (510) 635-4943

(CBOSCH/1301738,1

25
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damages. The foregoing conduct of the defendants, and each of them, was done wantonly,
willfully, oppressively and in conscious disregard of the safety of plaintiff herein, in that the
defendants, and each of them, prior to. and at the time of the sale of the aforementioned products to
plaintiff's employers or to those entities that installed and/or handled the asbestos products to
which plaintiff were exposed, knew that the foregoing materials released invisible, undetectable
respirable asbestos fibers when installed or handled and that said fibers were extremely dangerous
when inhaled. In addition fo the unlawful conduct described above, the defendants, and each of
them, either did not warn or insufficiently warned regarding the dangerous nature of said materials,
nor placed a sufficient warning on the said material or package thereof regarding said dangerous
nature, nor took any action te protect those persons who foreseeably would be exposed to said
asbestos products, despite knowing that persons who had no knowledge of the dangerous and
hazardous nature thereof, such plaintiff, would be exposed to and inhale asbestos fibers, and
plaintiff is entitled to punitive damages hereunder.

VII.

Plaintiff had no knowledge that the foregoing acts were actionable at law when they were
committed, and cannot be charged with knowledge or inquiry thereof.

WHEREFORE, plaintiff prays judgment as is hereinafter set forth.

FIFTH CAUSE OF ACTION
Conspiracy
[Against Metropolitan Life Insurance Company
and Does 211-250, Inclusive]
I.

Plaintiff hereby incorporates by reference each and every allegation of the preceding causes
of action herein.

U.

The term “conspirators” as used in this cause of action includes, but is not limited to,
METROPOLITAN LIFE INSURANCE COMPANY (“MET LIFE”), Anthony Lanza, M.D.,
Johns-Manville Corporation (“Manville”), Raybestos-Manhattan Corporation (“Raybestos”) and
the other entities and individuals identified in this cause of action.

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES 17Kazan, MCCLAIN,
SATTERLEY &

ACK LONGON MARKET

55 Hansson Streer,

(610) 302-1000
Fx (510) 835-4913

CBOSCHI1301738.1

27
28

Vil.
Plaintiff does not know the true names and capacities, whether corporate, associate or

individual of defendants sued herein as TWO-HUNDRED AND ELEVENTH DOE through TWO

|} HUNDRED TWENTY-FIFTH DOE, inclusive, and each of them, and for that reason prays leave

to insert the true names and capacities of said defendants when the same are ascertained. Plaintiff
is informed and believes and therefore alleges that each of the defendants designated herein as a
DOE is negligently, intentionally and/or strictly liable or responsible in some manner for the
events and happenings herein referred to, and_proximately caused injury and damages to plaintiff
thereby as herein alleged. At all times herein mentioned, defendants TWO-HUNDRED AND
TWENTY-SIXTH DOE through TWO HUNDRED FIFTIETH DOE were Officers and Directors
of named defendants herein as TWO-HUNDRED AND ELEVENTH DOE through TWO
HUNDRED TWENTY-FIFTH DOE. At all times herein mentioned, each of the defendants was
the agent and employee of each of the remaining defendants, and was at all times acting within the
purpose and scope of said agency and employment, and each defendant has ratified and approved.
the acts of the remaining defendants.

IV.

Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned
defendant METROPOLITAN LIFE INSURANCE COMPANY was and is a corporation organized
and existing under and by virtue of the laws of the State of New York or the laws of some other
state or foreign jurisdiction, and that this defendant was and is authorized to do and/or was and is
doing business in the State of California, and regularly conducted or conducts business in the
County of Alameda, State of California. At times relevant to this cause of action, MET LIFE was
an insurer of Manville and Raybestos.

Vv.

Decedent was exposed to asbestos-containing dust created by the use of the asbestos
products manufactured, distributed and/or supplied by one or more of the conspirators named
below. The exposure to the asbestos or asbestos-related products supplied by the conspirator(s)

caused decedent’s asbestos-related disease, injuries and/or death.

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIESKazan, MCCLAIN,
‘SATTEALEY &
GREENWOOD

APROPESSIONN. LAW

CORPORATION

JACK LONDON Maree

‘55 HARRISON STREET,

‘Sure 400
Onnuanio, CA 94607
(510) 302-1000
Fax (510) 835-4513

(BOSCH 2017381

26
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Vi.

The conspirators, individually and as agents of one another and as co-conspirators, agreed
and conspired among themselves, with other asbestos manufacturers and distributors, with certain
individuals including but not limited to Anthony Lanza, M.D. (“Lanza”) and with defendant MET
LIFE to injure decedent in the following fashion (the following is not an exclusive list of the
wrongful acts of the conspirators, but, rather, is a representative List):

(a) Beginning in 1929, MET LIFE entered agreements with Manville and others to
fund studies of the effects of asbestos exposure on Canadian asbestos miners. When the data from
these studies proved that Canadian asbestos miners were developing asbestosis, MET LIFE,
Manville and others suppressed its publication; further, Lanza (then a MET LIFE employee)
actively misrepresented the results of the Canadian study for many years thereafter to meetings of
health-care professionals seeking information regarding asbestos exposure.

(b) In approximately 1934, conspirators Manville and MET LIFE, through their agents
Vandiver Brown and attorney J.C. Hobart, and conspirator Raybestos, through its agents Sumner
Simpson and J. Rohrback, suggested to MET LIFE associate director Lanza that Lanza publish a
study on asbestosis in which Lanza would affirmatively misrepresent material facts and
conclusions about asbestos, including but not limited to descriptions of the seriousness of the
asbestosis disease process. The misrepresentation was accomplished through intentional deletion
of Lanza’s description of asbestosis as “fatal” and through other selective editing that affirmatively
misrepresented asbestosis as a disease process less critical than it was known to be by the
conspirators. As a result, Lanza’s study was published in the medical literature in 1935 with these
misleading statements. The conspirators were motivated to effectuate this fraudulent
misrepresentation and fraudulent non-disclosure in part by the desire to influence proposed
legislation to regulate asbestos exposure, to provide a defense in lawsuits involving Manville,
Raybestos and MET LIFE (as Manville’s and Raybestos’s insurer), and to promote the use of
Manville’s and Raybestos’s asbestos products.

(ce) The above-described conspiracy continued in 1936, when additional co-

conspirators American Brake Block: Corporation, Asbestos Manufacturing Company, Gatke

FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES, 19Kazan, MCCLAIN,
SATTERLEY &
GREENWOOD

PROFESSIONAL LAW

‘CoRPORATION
shox Lonoon MaKe
SS HARRISON STREET,
‘Sure 400.

OaKiano, CA 94607

(610) 302-1000
Fax (510) 835-4013

CBOSCHN301738.1

23
24

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Corporation, Manville, Keasbey & Mattison Company (then an alter ego to conspirator Turner &
Newall), Raybestos, Russell Manufacturing (whose liabilities have been assumed by H.K. Porter
Company), Union Asbestos and Rubber Company and United States Gypsum Company entered
into an agreement with a leading medical research facility, the Saranac Laboratories. Under the
agreement, the conspirators acquired the power to decide what information Saranac Laboratories
could publish regarding asbestos disease and could also control in what form such publications
were to occur. Their agreement provided these conspirators the power and ability to affirmatively
misrepresent the results of the work at Saranac Laboratories, and also gave these conspirators
power to suppress material facts included in any of the facility’s studies. On numerous occasions
thereafter, the conspirators exercised their power to prevent Saranac scientists from disclosing
material scientific data, resulting in numerous misstatements of fact being made at scientific
meetings concerning the health effects of asbestos exposure.

(d) The conspiracy was furthered when on November 11, 1948 representatives of the
following conspirators met at Manville headquarters: Manville, American Brake Block Division of
American Brake and Shoe Foundry, Gatke Corporation, Keasbey & Mattison Company (then an
alter ego of conspirator Turner & Newall), Raybestos, Thermoid Company (whose assets and
liabilities were later purchased by H.K. Porter Company), Union Asbestos and Rubber Company,
United States Gypsum Company and MET LIFE. U.S. Gypsum did not send a company employee
to the meeting, but instead authorized Vandiver Brown of Manville to represent its interest at the
meeting and to take action on its behalf.

(e) At the November 11, 1948 meeting, these conspirators aud their representatives
decided to exert their influence to materially alter and misrepresent material facts about the
substance of research conducted by Dr. Leroy Gardner at the Saranac Laboratories beginning in
1936. Dr. Gardner’s research involved the carcinogenicity of asbestos in mice and also included
an evaluation of the health effects of asbestos on humans with a critical review of the then-existing
standards for asbestos-dust exposure.

() At this meeting, these